Defendant
appeals from district court order revoking his probation and imposing the
underlying sentence of four to eight years for a sexual assault
conviction.Defendant conten=
ds the
court erred in allowing the prosecutor to question defendant about certain
uncharged offenses without offering him immunity, and in relying on inform=
ation
concerning the offensesin
imposingsentence.We agree, and therefore reverse a=
nd
remand for resentencing.

In
April 2004, defendant pled guilty, pursuant to a plea agreement, to a char=
ge of
sexual assault.He was sente=
nced to
four to eight years, all suspended, and placed on probation.Several months later, in June 200=
4,
defendant was charged with violating several conditions of probation.Following a hearing, the court fo=
und
that defendant had committed the violations as charged.Specifically, he had missed appoi=
ntments
with his probation officer, missed sex offender counselingsessions, tested positive for mar=
ijuana,
and failed to participate in the DAEP (domestic abuse education project)
program because of an unwillingness to accept responsibility for the
offense.The court then turn=
ed to
sentencing.Defendant testif=
ied in
his own behalf, asserting that he had been in denial but was now prepared =
to
accept responsibility for the assault. He acknowledged the marijuana use,
explaining that it had been caused by stress.

On
cross-examination, the prosecutor asked defendant whether he was currently
charged in Chittenden County with sexual assault on a minor.Defense counsel immediately objec=
ted on
the basis of lack of notice.The
court responded that it did not “want to know any details” of =
the
alleged charges, but did want to know the date of the alleged offense.Defendant responded that he had n=
ot been
charged with anything.The
prosecutor then asked whether the absence of charges was becausedefendant was working on a plea
agreement.Defendant acknowl=
edged
that there were four potential counts of furnishing alcohol to a minor, and
that he was “working” with the State police.The prosecutor then asked whether=
one of
the alleged offenses involved “digital penetration . . .while you gave her alcohol?”=
;Defendant responded that he did n=
ot
“know anything about that right now.”The prosecutor then asked, “=
;Should
we bring in the officer,” and the court interrupted, “Could, c=
ould
I just have the date of the offense, please?”At that point, defense counsel ag=
ain
objected, asserting that defendant had “a right to the fifth amendme=
nt at
this point.”A convers=
ation
among court and counsel followed, in which the prosecutor noted that defen=
dant
could be compelled to testify, but no further questions were put to
defendant.

In
imposing sentence, the court noted that defendant had committed several
violations while on probation from an earlier conviction of lewd and lasci=
vious
behavior, and observed that it was “not impressed with his compliance
with probation.”The c=
ourt
also observed that defendant had been previously enrolled in a DAEP progra=
m and
therefore knew its requirements. =
span>Additionally,the court stated that it was
“concerned by [defendant’s] admissions” concerning the
potential charges of furnishing “[a]lcohol to minors . . . apparentl=
y at
least one of them was a girl.”The court also recalled defendant’s testimony that he
“didn’t inhale” while smoking marijuana, observing that =
it
was “not impressed with the defendant’s candor.”Finally, the court concluded, =
220;I
think he’s dangerous.=
And I
think he should be sentenced to the underlying.”Accordingly, the court imposed the
underlying sentence of four to eight years.A subsequent motion to reconsider
sentence was denied.This ap=
peal
followed.

Defendant
contends the court erred in admitting defendant’s testimony concerni=
ng
the alleged charges in Chittenden County without first offering him use
immunity. In State v. Begins, 147 Vt. 295, 299-300 (1986), we held =
a probationer
who wishes to testify at a revocation hearing must be advised that the
testimony and its fruits will not be admissible in a subsequent criminal t=
rial
on the underlying offense.W=
e have
also held that in any sentencing proceeding, evidence of other charges of =
prior
criminal activity, whether pending or dismissed, should not be admitted wi=
thout
first offering use immunity to the defendant. State v. Drake, 150 V=
t.
235, 238 (1988).These decis=
ions
dictate that defendant should have been offered immunity prior to answerin=
g the
prosecutor’s questions concerning the alleged Chittenden County
offense.As noted, defendant
acknowledged the existence and nature of the pending charges, and the court
relied on them in imposing sentence.This was erroneous, and we cannot – on this record –
confidently conclude that the error was harmless.See State v. Ingerson, 200=
4 VT
36, ¶ 10, 852 A.2d 567 (we will affirm sentence if “it was not
derived from the court’s reliance on improper or inaccurate
information”); State v. Bacon, 169 Vt. 268, 273 (1999) (harml=
ess
error doctrine applies to sentencing proceedings).Accordingly, we hold that the sen=
tence
must be reversed, and the matter remanded for resentencing.

=
&nbsp=
;

The
sentence on the underlying offense is reversed, and the matter is remanded=
for
resentencing consistent with the views expressed herein.